Opinion
NO. 2016-CA-000541-MR
02-17-2017
JOHN POOLE APPELLANT v. KENTUCKIANA COMFORT CENTERS, INC., AND CARRIER CORPORATION APPELLEES
BRIEF FOR APPELLANT: John Poole, Pro Se Frankfort, Kentucky BRIEF FOR APPELLEE, KENTUCKIANA COMFORT CENTER, INC.: H. Kevin Eddins Kevin J. Fiet Louisville, Kentucky BRIEF FOR APPELLEE, CARRIER CORPORATION: John B. Moore Edward M. O'Brien Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 14-CI-00433 OPINION
AFFIRMING
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BEFORE: CLAYTON, D. LAMBERT, AND THOMPSON, JUDGES. CLAYTON, JUDGE: In 2008, John Poole purchased for his personal home a Carrier Infinity series HVAC system from Kentuckiana Comfort Center, Inc. ("KCC"). The system included a heat pump, furnace, coil, humidifier, thermostat, and other associated items. KCC installed the system. The system was covered by various warranties, including a 10-year warranty from Carrier Corporation ("Carrier").
Following installation, the system required only periodic calibration as it adjusted to its new environment. KCC addressed the service codes and found the system to be operating as expected and at optimum levels. Indeed, Poole concedes the system adequately delivers heat and conditioned air. Poole's complaint with the system has to do with an alleged clicking or popping noise that allegedly, occasionally occurs during the colder of the winter days. This alleged defect in the HVAC system did not begin, Poole asserts, until the third winter after the system was installed.
In the fall of 2011, during a scheduled system inspection, Poole mentioned the popping and clicking noise to KCC. KCC inspected the system and was unable to replicate the noise nor determine any source of the alleged noise. KCC inspected it again in the fall of 2012, but it was also unable to replicate the noise or determine any source of the alleged noise.
In the winter of 2013-2014, KCC again went to evaluate the HVAC system to try to source the alleged noise problem. At this visit, KCC noticed a faint popping sound and believed the noise might be due to condensate water running back to the HVAC system while it was operating. KCC modified the system to address the condensate line popping issue.
A few weeks later, Poole contacted KCC and alleged that the noise was still occurring. KCC contacted its supplier of Carrier equipment, Koch Air, to obtain a recommended solution to the issue. KCC then changed the drain pipe's pitch and performed other modifications pursuant to Koch Air's recommendations. KCC also returned a couple of months later and insulated a flue pipe. KCC believed at that point that its repairs had isolated any and all noise to the crawl space where the HVAC was housed, and no noise was invading the living space. Poole believed the noise could still be heard inside the residence, however, and demanded the entire HVAC system be replaced.
Shortly thereafter, on April 11, 2014, Poole filed a Complaint in Franklin Circuit Court against KCC and Carrier, alleging multiple causes of action. The filing of the Complaint was the first time Carrier had been notified of any alleged problem with the HVAC system. Carrier requested to inspect the unit, but Poole denied Carrier's request. Carrier then filed a motion to compel its request for entry upon land, which the trial court granted. The parties met at Poole's home on April 17, 2015. The noises about which Poole complains were not present, nor could they be replicated.
Nonetheless, a technician for Carrier proposed a potential solution to the alleged noise. The exhaust pipe would be routed through the roof instead of out the back of the house. Exhaust pipes already ran out the top of the house and out the back, so the only modification to the home would be to remove the vent cap on the top of the house and place a seal around it to keep rain water from coming in. The vent on the back of the house would be capped as it would no longer be operational. When KCC technicians arrived on June 18, 2015 to perform the work, Poole did not permit them to modify the system, asserting that the modifications were aesthetically unpleasant and would permanently affect and damage his home.
The instant litigation lasted approximately two years and resulted in hundreds of pages of filings and multiple, lengthy hearings. The litigation was resolved on March 25, 2016, when the Franklin Circuit Court entered a detailed, 27-page Opinion and Order granting summary judgment in favor of KCC and Carrier and denying Poole's motions for summary judgment. Poole timely appealed. We begin our analysis with the relevant standard of review for summary judgment motions.
STANDARD OF REVIEW
The trial court granted KCC and Carrier's motions for summary judgment and denied Poole's motions. Accordingly, we must view "[t]he record . . . in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citing Dossett v. New York Mining and Manufacturing Co., 451 S.W.2d 843 (Ky. 1970)). "Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists." Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 905 (Ky. 2013) (footnote omitted).
Under that review, summary judgment should only be granted "when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Steelvest, 807 S.W.2d at 483 (quoting Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)). "'[I]mpossible' is used in a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). "The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present 'at least some affirmative evidence showing that there is a genuine issue of material fact for trial.'" Lewis v. B&R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (quoting Steelvest, 807 S.W.2d at 482). When a properly-supported motion for summary judgment is presented to the trial court, the opposing party must present affirmative evidence to defeat it and cannot rely on a hope that the fact-finder will disbelieve the movant's denial of a disputed fact. O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006) (citing Steelvest, 807 S.W.2d at 481).
ANALYSIS
On appeal, Poole proffers numerous alleged errors with the trial court's thorough order granting summary judgment. Poole even cites to hundreds of pages of additional arguments in the trial record below to support his myriad claims. "We have carefully reviewed all the issues presented by [Poole] and this opinion will concentrate on those questions which we believe are necessary to the resolution of this case." Baze v. Commonwealth, 965 S.W.2d 817, 820 (Ky. 1997). Accordingly, "[a]llegations which we consider to be without merit, will not be specifically addressed here." Id.
The recurring problem with Poole's plethora of claims is that he has failed to demonstrate the HVAC unit is defective or faulty, or that Carrier or KCC breached a contract or failed to honor a warranty, or that he has suffered any pecuniary loss. Regarding the unit's defectiveness, the trial court so aptly noted, ". . . the Plaintiff does not put forward any facts beyond mere allegations or speculation. The Unit worked well immediately following its installation, and indeed, according to the repairmen, has continued to work well." (Opinion, p. 16). Poole disagrees, arguing the trial court too narrowly viewed the unit's proper functioning only as providing heating and cooling. Poole claims a noisy unit would also constitute a defect.
However, the issue is not whether excessive noise from an HVAC unit is a defect. The issue is whether Poole has put forward sufficient evidence that there is noise that constitutes a defect. To that end, we are mindful that when a properly-supported motion for summary judgment is presented to the trial court, the opposing party must present affirmative evidence to defeat it and cannot rely on a hope that the fact-finder will disbelieve the movant's denial of a disputed fact. O'Bryan, 202 S.W.3d at 587 (citing Steelvest, 807 S.W.2d at 480).
Here, the undisputed fact is that at this point the noise complaint is supported by Poole's own allegation. Poole claims his allegation is circumstantial evidence sufficient to support his claims, citing Smith v. General Motors Corp., 979 S.W.2d 127 (Ky. App. 1998). The contrast between the instant case and Smith is illustrative of Poole's failure of proof.
In Smith, the purchaser of a new van had the vehicle stall on him three times while he was traveling at highway speeds. The purchaser returned the van to the dealership, which was unable to find any defect. The purchaser then complained to General Motors Corporation. He requested that both the dealership and General Motors sign statements saying the vehicle was safe for use. Both declined to sign the statements. The purchaser then returned the vehicle to the dealership and initiated a lawsuit. Id. at 128-29.
Though the stalling could not be replicated, substantial circumstantial evidence was presented to create a material issue of fact about whether the stalling was a material defect rendering the vehicle unmerchantable. During discovery, the purchaser learned the dealership had made pre-sale repairs to the van. One of the repairs was due to engine performance problems that included the engine dying at highway speeds. The evidence that the vehicle stalled also included several witnesses other than the purchaser, and it included documentation that other General Motors' vans also stalled. Id. at 128-132.
Poole also relies on Ford Motor Co. v. Mayes, 575 S.W.2d 480 (Ky. App. 1978), and Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287 (Ky. 1991). In each of these cases there appears to have been ample evidence that the vehicles had significant defects. --------
In sharp contrast stands the instant case. Here, even if we assume the HVAC unit makes (or made) a popping or clicking noise, KCC fixed the unit several times to address the noise and testified that any remaining noise is isolated to the crawl space where the unit was installed. The only proof that the popping or clicking noise still remains and is audible inside Poole's residence is Poole's own allegation. The parties all inspected the unit and attempted to replicate the noise in April of 2015 and were unsuccessful in their efforts. Poole has not put forward any additional evidence and maintains that his allegation is sufficient circumstantial evidence to survive summary judgment. It is not.
Even if we assume that any noise is a defect in the HVAC unit, and if we assume that the unit does make noise, Poole still must present some affirmative evidence that the noise is audible inside the residence. Poole proffered no such evidence to the trial court, instead relying on his own allegations in his pleadings. These allegations are in stark contrast to the weighty circumstantial evidence in Smith that included a previous repair for stalling, known stalling defects with other similar vans, and several witnesses to the van's stalling. Poole cannot show that any other Carrier Infinity series HVAC unit makes noise, and he even points out in his brief that the Carrier representative testified that a clicking sound was very unusual and not consistent with the normal design and operation of the HVAC system. Poole cannot show that KCC or Carrier had any foreknowledge that this HVAC unit was making a noise before it was installed. And Poole proffers no witnesses - lay or expert - to the noise that the HVAC unit allegedly continues to make inside the residence.
Moreover, Poole fails to present affirmative evidence that KCC or Carrier breached a contract or failed to honor a warranty. When the parties inspected the residence and failed to replicate the alleged sounds, Carrier's engineers nonetheless put together a proposed fix to the alleged noise. The fix was non-invasive and utilized the already-existing exhaust pipes. When KCC showed up to implement the alteration, Poole refused service.
Thus, the evidence of record demonstrates that KCC and Carrier have been honoring their contracts and warranties, even to fix a noise problem that at this point cannot be replicated or proven. Poole, however, refused the warranty service and has failed to put forth demonstrative, concrete proof that the alleged noise problem exists inside the residence.
In other words, KCC and Carrier presented properly-supported motions for summary judgment, and Poole responded only with speculation and supposition - by pointing to his own allegations in his complaint to support his claims. "'The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment.'" Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 201 (Ky. 2010) (quoting Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001)).
In spite of the extensive discovery and deposition practice, Poole's proof remains his bare allegations. This proof is insufficient to survive KCC and Carrier's properly-supported summary judgment motions.
We have considered the arguments presented by all parties, the trial court's well-reasoned order, and the applicable law. Having done so, we hold that Poole's arguments fail in toto. Accordingly, the trial court properly granted summary judgment to KCC and Carrier.
ALL CONCUR. BRIEF FOR APPELLANT: John Poole, Pro Se
Frankfort, Kentucky BRIEF FOR APPELLEE,
KENTUCKIANA COMFORT
CENTER, INC.: H. Kevin Eddins
Kevin J. Fiet
Louisville, Kentucky BRIEF FOR APPELLEE, CARRIER
CORPORATION: John B. Moore
Edward M. O'Brien
Louisville, Kentucky